Agreement on mutual settlements. Settlement agreement template

Legal entities in progress economic activity often face situations where there is not enough money to cover debts to business partners, but at the same time they have counter outstanding obligations. In such cases, you can resort to offsetting mutual debt. The main document in this case will be the offset agreement. mutual demands(a 2018 sample can be found at the end of this article). The transaction will be valid provided that the parties have complied with all the requirements put forward by law for the offset of debts.

What is reciprocity

The conditions for offsetting and cases when it is impossible to carry out are given in Articles 410, 411 of the Civil Code of the Russian Federation. Set-off is intended to terminate (full or partial) the mutual obligations of the subjects entrepreneurial activity. Also, offsetting is considered as one of the ways to conduct non-cash payments between organizations, in which mutual claims are repaid in the supply of goods or the provision of services. Organizations must necessarily conclude a written agreement on the set-off of counterclaims of the same kind, only then it will have legal force.

Offsetting allows you to safely reduce the amount of receivables and payables of organizations, which will subsequently have a positive impact on the results of their business activities.

Any of the parties can be the initiator of the offset. To do this, a letter is sent to the other party with a proposal for the mutual offset of existing debts. Before signing an agreement on offsetting counter homogeneous claims, a sample of which will be presented below, the parties must draw up an act of reconciliation of mutual settlements. This is necessary in order to document the amount of existing obligations.

Mandatory conditions for mutual settlement:

• offsetting objects must be of a homogeneous nature;
• obligations of organizations must be counter;
• the claims made must satisfy the interests of both parties;
• if, under an agreement between organizations, an obligation must be fulfilled in certain period, it is impossible to set a offset requirement before the date of its execution.

An agreement on the offset of mutual claims can be drawn up not for the entire amount of debt obligations, but only for some of them. If the offset was made in an amount less than the existing debt, you can pay the rest in cash.

The set-off agreement, a sample of which is at the end of the article, is most often concluded between two firms. But the current legislation allows for multilateral netting.

netting agreement

There is no unified form of the document. Since the offset agreement is essentially a transaction, the same requirements are put forward for its execution as for the preparation of contracts. If the document lacks information that is mandatory for reflection in the contract, it may be declared invalid.

AT Russian legislation there are no specific requirements for size limit mutual obligations. Offsetting is allowed even if the volume of counter obligations of organizations is not equal to each other, then it is made in the amount corresponding to the smaller of the debts.

A representative of either party can draw up an agreement. As a rule, such a duty is assigned to a full-time lawyer, accountant or other employee. The specialist responsible for drawing up the agreement must have an idea of ​​all the details of contractual obligations and the rules for drawing up such documents. A sample netting agreement between organizations can be taken as a basis.

What information should be included in a settlement agreement?

The documents must reflect:

• date and place of signing the document;
• the name of the organizations participating in the offsetting of counterclaims;
• Title of the document;
• FULL NAME. and the position of persons authorized to sign the netting agreement;
• details of each counter-obligation;
• the amount in which liabilities are set off;
• the fact of the agreement reached;
• a link to the contracts under which the netting is carried out;
• date of entry into force of the agreement;
• addresses and details of the parties.

If the netting agreement, a sample of which can be downloaded at the end of the article, is accompanied by additional terms or documents - they are listed as a separate item.

The agreement must be signed by the heads of all participating organizations. The document is drawn up in two or more identical copies (one for each side). On its basis, the corresponding accounting operations will be carried out.

Many companies and enterprises involved in the field of small business have to experience a shortage of working capital. In this regard, when carrying out business activities and making settlements, some of them resort to offsetting claims. This significantly reduces the costs of companies and saves money in the amount of the netting agreement.

Abuse of this way of doing business can lead to increased scrutiny from supervisory and tax authorities. The problem is that when the claims are offset and there are no payments, the transaction loses its commercial component, resulting in a decrease in volumes. taxable income. Settlements are not reflected in bank accounts, which means that it becomes difficult to control the company's activities.

Incorrect execution of an agreement on offsetting claims can be interpreted by tax authorities as an exchange agreement, to which other methods of accounting and taxation are applied. tax accounting.

If a single bilateral agreement is used in barter transactions, then when offsetting, counter-obligations of a homogeneous nature can be repaid under several agreements, upon the due date of their implementation.

Sample contract

Article 410 of the Civil Code determines that the validity of obligations is terminated (partially or completely) by offsetting counterclaims of the same nature, the deadline for which is stipulated by the terms of demand or is not defined.

One of the parties can initiate the operation by submitting an application. In fact, such activity is reduced to the relationship between the participants as a debtor and a creditor, between which there are previously concluded agreements. In this case, each of the parties in one agreement can act as a seller (executor), and in another - a buyer (customer).

The condition of a counterclaim is mandatory for the performance of such contracts. In the presence of numerous participants in the process of commodity exchange, it can be very difficult to figure out and prove who owes what to whom, since as a result of activity there is a circular mutual debt.

There are conditions under which offsetting is not possible. Article 411 determines that unacceptable demands include:

• a statement by a party for which the limitation period for fulfilling an obligation has already expired;
• claims for compensation for harm that caused damage to human health or life;
• applications for forced payment of alimony;
• requirements for life maintenance;
• other statements specified in the netting agreement or determined by law.

The conclusion of an agreement on offsetting is possible only if the term for cash settlements has expired. In the event of a difference in the amounts of obligations, the resulting difference should be compensated through cash payments. If none of the parties to the agreement has started to fulfill the requirements, the offset of obligations is not carried out.

A prerequisite for the offsetting procedure is the homogeneity (equivalence) of the set counterclaims in relation to the object of obligations. At the same time, the reason for its appearance does not matter (letter of the Supreme Arbitration Court No. 65 dated December 29, 2001 regarding the practice of resolving disputes that arose as a result of offsetting operations).

To start the offsetting procedure, one of the parties to the agreement must initiate the process by submitting an application (notification letter) to the other party, and the fact of its receipt indicates the termination of the obligation.

Drawing up an act of mutual settlement

An agreement drawn up correctly and legally competently can save the parties from most problematic situations. With all seriousness, it is worth taking the correct drawing up of the act of offsets carried out: this document has the status of a primary one from the point of view of accounting, must be signed by the management in the person of the head and the accountant on both sides, and have seals.

Offsetting under the simplified taxation scheme

Private entrepreneurs using the simplified taxation system in their activities must special attention relate to tax transactions in a netting transaction. In this case, the income part reflects the total price of goods (services) sent to the purchaser, and the expenditure part reflects the cost of the offset agreement.

The tax authority may strongly recommend that offsets be carried out under agreements for which obligations are not repaid for a long time. So the amount under the agreement will be reflected in the revenue side, which will increase the tax requirements. In this case, the entrepreneur has the right to decide on his own whether to use the offsetting scheme or not.

(Size: 35.0 KiB | Downloads: 9,195)

you can download on our website - is, like any other, in the jurisdiction of the Civil Code of the Russian Federation. In this case, a number of special requirements for its preparation should be taken into account. We will study the features of concluding such an agreement in more detail.

Can 3 firms enter into a netting agreement?

Any contract within the jurisdiction civil law may be multilateral, that is, involve the participation of three or more parties (Article 154 of the Civil Code of the Russian Federation). Settlement agreement - voluntary refusal parties in exercising the contractual right of demand in exchange for a similar refusal of the other party - can also be tripartite. Such an agreement must meet the criteria prescribed in Art. 410 of the Civil Code of the Russian Federation, that is, to assume the mutual termination of the obligations of the parties (for example, to pay for the supply of goods or services in rubles) after the deadline for claiming such obligations (unless otherwise permitted by law).

Any party to the contract has the right to initiate offsetting unilaterally. However, other participants in legal relations may later have objections to such an initiative, and each of the parties will have to prove their case in court. Therefore, many firms prefer to set off obligations under a separate agreement, which can be tripartite.

At the same time, the structure of obligations that the parties have to each other may be different. A “vicious circle” of obligations is common, when all 3 firms owe something to each other.

Example

FirmAowes 100,000 rubles. firmB, which owes 100,000 rubles. firmC. In turn, the firmCowes 100,000 rubles. firmA. If the parties agree on offsetting the amount of 100,000 rubles, then no one will remain indebted to anyone.

Drawing up a netting agreement, including a tripartite one, has a number of nuances. Let's study them.

Sample triple netting agreement: how to draw up a document

When compiling the document in question, you need to keep in mind that:

1. Immediately before signing the contract, it is desirable to reconcile the settlements of debts (decree Arbitration Court of the North Caucasus District dated 07.07.2016 No. F08-3112/16 in case No. A32-7482/2015).

The reconciliation results can be fixed in a separate act.

2. Set-off is possible only for homogeneous claims.

The main criterion for homogeneity here is the method of repayment of obligations. It can be presented, for example:

• cash settlements in the established currency;
• supply of certain goods in a specified quantity (certain services in a specified volume);
• transfer of promissory notes (bills) or assignment of the right to claim for debts of third parties.

That is, if the contract between firms A and B provides for cash settlements, and the contract between firms B and C provides for in-kind deliveries, then offsetting will not work.

3. An agreement cannot be drawn up if (Article 411 of the Civil Code of the Russian Federation):

• at least one creditable obligation is related to compensation for harm to health, life support, payment of alimony;
• at least one of the obligations has expired the limitation period;
• there are other obstacles to its conclusion, due to the law or the contract.

4. The contract must contain the following information:

• on the composition of mutually offset obligations;
• legal grounds for the emergence of relevant obligations (with links to contracts, primary documents);
• about monetary terms of liabilities.

You can view a sample triple netting agreement on our website at the link below.

you can download on our website - must comply with a strict list of civil law requirements. We will study the main nuances of drawing up such an agreement.

What is the essence of netting (under contracts for the provision of services and the supply of goods)?

Set-off is an agreement between the parties to civil legal relations on the mutual termination of certain obligations in the prescribed amount. For example, if the contractor performed work for the customer, while the customer delivered the goods to the contractor, then each of the parties can release itself from paying obligations fulfilled by the other party in exchange for the fact that the other party, in turn, will also not pay for the performed first obligation. Legally, such a condition can be enshrined in an offsetting agreement for the provision of services (or the supply of goods).

It is important at the same time that (Article 410 of the Civil Code of the Russian Federation):

• obligations had a sign of homogeneity;
• the deadline for fulfilling obligations by the time of offsetting has come (exceptions - if it is not specified, is subject to a separate indication, or there are reasons not to comply with this condition by law).

Offset cannot be carried out if (Article 411 of the Civil Code of the Russian Federation):

• the obligation of any of the parties is connected with compensation for harm to health, life maintenance, payment of alimony;
• under the obligation of any of the parties, the limitation period has expired;
• the conclusion of an offsetting agreement is expressly prohibited by law or the agreement.

Offsetting can be legally fixed not only in the contract, but also unilaterally - through a statement of offset drawn up by any of the parties to the transaction. But in this case, the party who made the application must be ready, if necessary, to prove in court that:

• the application was unambiguously received by the counterparty;
• the counterparty had no objections to the offset.

Drawing up a bilateral agreement on netting does not have such disadvantages, and many firms use it.

We draw up a settlement agreement: what to look for?

When drawing up an agreement, which in question, the parties need to keep in mind that:

1. The agreement must necessarily reflect the information:

• on the composition of obligations that are repaid as part of the offset;
• contracts and other documents of title (acts, waybills, invoices) under which obligations have arisen;
• the financial value of the claims.

2. It is desirable to provide motivational statements arguing its preparation.

For example, indicate that the contract is drawn up in order to simplify and increase the efficiency of the settlements of the parties.

3. In the agreement, it is desirable to indicate that mutually offsetting claims are homogeneous, and provide the main sign of their homogeneity (for example, indicate that financial obligations are offset in rubles, goods of the same type in pieces, services of the same type in specific units of volume).

4. In the contract, it is desirable to reflect the balance of the debt of any of the parties, since it is quite likely to be formed upon the fact of offsetting.

It would be appropriate to indicate in the preamble or other part of the contract that it is drawn up on the basis of the provisions of Art. 410 and 411 of the Civil Code of the Russian Federation.

How to set off under different contracts with one counterparty?

A scenario is possible in which the firm's counterparty has obligations to it (or it to the counterparty) under two different contracts. This is not of fundamental importance from the point of view of the possibility of offsetting. The main thing is to consistently state in the agreement the procedure for offsetting the claims of the parties with references to different agreements, and correctly reflect the financial component.

How to make the offset between the contracts of one counterparty comply with the requirements of the law? The main thing here is to make sure that the content of legal relations in essence does not imply obstacles for offsetting requirements from the point of view of the norms of Art. 410 and 411 of the Civil Code of the Russian Federation.

Thus, an obstacle to offsetting claims under several contracts with a counterparty may be the heterogeneity of obligations reflected in different contracts. For example, if one contract is drawn up in rubles, and the other - in foreign currency. In this case, offsetting between contracts of one counterparty will not be possible. To offset claims under each contract, the firm needs to draw up a separate agreement with the counterparty (provided, of course, that he has claims to it in the same currency).

Offsetting and tax accounting: nuances

Tax accounting of legal relations on offsetting obligations is characterized by the fact that:

1. The fact of signing a netting agreement between organizations does not change the composition tax base by VAT. It also does not matter if, for example, the company received an advance from the counterparty against future deliveries, and it was offset under the agreement on netting obligations, while the goods or services were not delivered to the counterparty.

2. Offsetting does not change the composition of the tax base for income tax, since under the accrual method, income and expenses under an agreement with a counterparty will be recognized even before offsetting. Under the cash method, income and expenses will be determined upon the fact of netting.

3. With simplification, the situation is similar to that observed with the cash method of accounting for income and expenses by the payer on the OSN. Income and expenses are recognized by the company on the simplified tax system only upon the fact of offsetting obligations with the counterparty.

Sample agreement of netting between legal entities You can download it from our website using the link below.

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In the last few years netting increasingly common in the practice of business entities. According to the civil code Russian Federation this transaction is a written agreement between two organizations on the mutual repayment of obligations that are homogeneous in nature.

These obligations include claims for payment for various goods, services or works.

Usually, offsetting is resorted to when it is impossible to pay off the debt in cash. If the requirements of organizations to each other are the same in form and volume, then they can be considered mutually fulfilled.

Conditions for the operation

1) Organizations that are going to offset must comply with the following rules:

• First, offsetting is possible for two or more obligations;

• Secondly, the emerging requirements must be counter. This means that each organization is both a debtor and a creditor simultaneously for another party to the agreement, but for different obligations. Each of the obligations must be confirmed by the contract;

• Thirdly, the obligations must be homogeneous. That is, the object on which claims arise must be the same for both parties to the netting agreement. For the most part this cash, however, in special cases it can even be goods. It is important to consider that funds must be expressed in one currency;

• Finally, the fact of the occurrence of obligations with counterclaims must be recorded.

2) There is also a rule on the timing of the fulfillment of a counter obligation. According to him, offsetting is possible if:

• The due date has arrived;

• The term is not specified in the contract between the parties;

• The term is determined by the moment of demand for the obligation.

If the terms are specified in the official contract, then the offsetting operation can be performed only after its expiration.

AT Civil Code The Russian Federation also mentions those requirements that cannot be taken into account under the netting agreement.

3) The operation is not possible if:

• The statute of limitations has expired on the obligation of one of the organizations;

• The requirement is to compensate for moral and physical harm to health or life;

• arises in relation to the payment of alimony;

• The requirement for life maintenance of citizens.

Also, offsetting is not possible if it is prescribed in the contract between the parties on the supply of goods, services or works.

The list does not end there, other conditions are established by law and are of a private nature.

4) The operation is prohibited if:

• One of the parties to the agreement did not meet the deadlines for fulfilling the requirements;

• One of the organizations suffers (officially going into bankruptcy).

Since any organization keeps records of accounts payable and receivable to counterparties, finding the possibility of offsetting is quite simple.

The legislation establishes that the application of only one party is sufficient to perform this operation. However, as practice shows, offsetting is carried out only by mutual agreement of organizations.

5) The decision to conduct the operation is drawn up by one of the following documents:

• Agreement on mutual offset of claims;

• Settlement agreement;

• The act of reconciliation of debts of a mutual nature.

The listed documents are used in accounting to reflect transactions of this type.

After making a decision on the implementation of offsetting, organizations will agree on the amount of debt. Only after that, the parties put their signatures in the act of netting.

Paperwork

1) For the offsetting operation, the corresponding act is filled out, in which the following data must be indicated:

• Documents that serve as the basis for the appearance of mutual debt;

• The amount of the total debt of the participants in the transaction, expressed in one currency. VAT must be allocated;

• Part of the debt that the parties repay by the method of offsetting. The allocation of VAT is also mandatory.

2) The act must contain the signatures of responsible persons on the part of the parties to the agreement.

If for some reason one of the organizations cannot sign the act, then the other organization sends a netting notification. The notice must indicate the grounds for the obligations that have arisen (details of the contracts), the terms and amounts within which the mutual offset of claims is carried out.

The application for this operation does not have a strict form, therefore the parties can draw it up in any form.

3) Notice - binding document for both organizations. This is due to a number of reasons:

• The act serves as the basis for reflecting the offsetting operation in accounting;

• Mutual set-off of claims must be taken into account by both parties. This requirement exists to prevent tax problems;

• If one of the parties does not receive notification of the netting, then it has full right file a lawsuit to recover the amount of debt from your counterparty.

Partial offset of claims

Equivalent liabilities- a rather rare case in the practice of business entities.

For this reason, it is not possible to carry out a full offset. In this case, the legislation provides for the possibility of performing an operation on partial offset of claims.

This means that offsetting can be carried out in the amount of the smallest debt of one of the parties.